In Diorite Securities v. Trevali, 2019 ONSC 4225, Mr. Justice Laurence A. Pattillo held that determining whether parties intended to exclude a right of appeal required analysis of both the actual wording in their agreement and the circumstances surrounding its negotiation. The application for leave to appeal involved an agreement entered into before Ontario’s Arbitration Act, 1991, SO 1991, c 17, a time at which no appeal was provided on even questions of law. The 1990 agreement required Pattillo J. to consider whether the parties’ wording disclosed an intention to allow or deny appeals on a question of law and whether the award contained a “rare” extricable question of law.
Continue reading “Ontario – “agree to be bound” less effective than “final and binding” in excluding appeal – #218”Ontario – administering institution granted leave to intervene in challenge to appellate arbitral award – #214
In Re/Max All-Stars Realty Inc. v. Real One Realty Inc., 2019 ONSC 4956, Master Michael P. McGraw granted leave to an real estate industry association to intervene in a challenge to an award issuing from a process it administered. Master McGraw held that the association was uniquely placed to make a useful contribution to the determination of the issue regarding the history/purposes of the arbitration rules prohibiting court litigation and how interpretation of those prohibitions may affect other arbitral provisions. Contrast this reasoning/result with HZPC Americas v. Skye View Farms, 2018 PESC 47 (CanLII) which determined that an arbitral institution would not contribute anything useful to an appeal involving excess of jurisdiction of the institution’s arbitration rules. See the Arbitration Matters note “P.E.I. – arbitral institution denied leave to intervene in jurisdiction-based challenge to arbitral award”.
Continue reading “Ontario – administering institution granted leave to intervene in challenge to appellate arbitral award – #214”Ontario – no forgiving liability or forgetting facts when counsel apologizes in court on client’s behalf – #212
In Pollard Windows Inc. v. 1736106 Ontario Inc., 2019 ONSC 4859, Ontario’s Divisional Court held a litigant to submissions made by its counsel in court, determining that the provisions of Ontario’s Apology Act, 2009, SO 2009, c 3 did not serve to exclude the apology and admission of liability. Because the Apology Act expressly stipulates that it applies to arbitration, the Court’s reasons regarding the combined effect of counsel’s ostensible authority and the characteristics of an apology apply to arbitration as well.
Continue reading “Ontario – no forgiving liability or forgetting facts when counsel apologizes in court on client’s behalf – #212”Ontario – pleading to action insufficient to qualify as waiver to request stay – #209
In Khomovych v. Bomar 2 Inc. o/a Colony Park Homes, 2019 ONSC 3982, Madam Justice Mary E. Vallee stayed the action despite Defendant having pleaded to it and Plaintiff’s request for an adjournment so that it could present its motion for summary judgment under section 7(2)5 of Ontario’s Arbitration Act, 1991, SO 1991, c 17. Vallee J. determined that the parties were bound to undertake arbitration imposed by legislation applicable to new home warranties.
Continue reading “Ontario – pleading to action insufficient to qualify as waiver to request stay – #209”Ontario – court’s willingness to continue in obiter and determine key issue in appeal treated as decision on merits – #208
In BGOI Films Inc. v. 108 Media Corporation, 2019 ONCA 539, the Ontario Court of Appeal quashed attempts to appeal a decision which denied leave to appeal an award and then a decision which recognized and enforced the award. In reasons best described as brief, the Court held that no appeal lies from a refusal to grant leave when that refusal is based on the merits. Having dismissed that appeal, no grounds remained to give the court jurisdiction to refuse to recognize and enforce the award and the second appeal no longer had a basis.
Continue reading “Ontario – court’s willingness to continue in obiter and determine key issue in appeal treated as decision on merits – #208”Ontario – length/brevity of reasons in award not equal to reasonableness/insufficiency – #202
In Peralta v. Peralta, 2019 ONSC 2854, (unreported, May 7, 2019, Court file no. CV-18-26994), Mr. Justice Thomas J. Carey held that lengthy reasons do not equal reasonable and correct reasons any more than brief ones are equated with insufficiency. In his own brief reasons upholding a final award on the standard of reasonableness, Carey J. echoed earlier judicial observation that losing in arbitration itself does not equate to unfair or unequal treatment. The challenged result was an outcome open to the arbitrator, within his expertise and supported by clear, concise and reasonable reasons.
Continue reading “Ontario – length/brevity of reasons in award not equal to reasonableness/insufficiency – #202”Ontario – arbitral award given no weight in court when litigant not party to the arbitration – #200
In G.E.X.R. v. Shantz Station and Parrish & Heimbecker, 2019 ONSC 1914, Madam Justice Catrina D. Braid declined to give evidentiary weight in her court to an arbitral award to which one of the litigants before her was not a party. While open to giving arbitral awards some weight in certain circumstances, the plaintiff’s absence from the arbitration was sufficient to disregard the award. Braid J. also commented on whether an adverse inference should be drawn if neither party called a key witness from the arbitral proceedings.
Continue reading “Ontario – arbitral award given no weight in court when litigant not party to the arbitration – #200”Ontario – new disputes either beyond or no longer subject to abandoned submission agreement – #198
In 1230455 Ontario Ltd. v. 150 Katimavik Inc., 2019 ONSC 2481, Madam Justice Michelle O’Bonswain declined to order the parties to arbitration due to the scope of the submission to agreement and its abandonment. O’Bonswain J. held that (i) one part of their new dispute did not fall within their initial submission to arbitration and (ii) the other part of their dispute did fall within the agreement but the parties had abandoned arbitration.
Continue reading “Ontario – new disputes either beyond or no longer subject to abandoned submission agreement – #198”Ontario – unsuccessful attempt by new counsel to enjoin further arbitration after partial award – #196
In Lobanova v. Grynyshyn, 2019 ONSC 3064, Mr. Justice Frederick L. Myers dismissed an attempt by new counsel to enjoin the arbitrator from completing the arbitration and deciding isolated monetary issues intentionally left unresolved by an earlier, partial award. Myers J. stated that access to the courts is not a “do-over” once the arbitral “main event” concludes. Despite appointing new counsel, a change in strategy and new arguments cannot excuse positions taken earlier in the arbitration or contradict evidence already adduced. Myers J. discouraged challenges to discretionary procedural orders, especially fully reasoned ones, including challenges which prevent the court from having a full case if and when an appeal was authorized.
Continue reading “Ontario – unsuccessful attempt by new counsel to enjoin further arbitration after partial award – #196”Ontario – overlapping cost applications result in denial of most of costs claimed – #191
In Iqbal v. Mansoor, 2019 ONCA 110, Ontario’s Court of Appeal declined to hear an appeal of a costs order, holding that appellant had refused to seek the required leave to appeal such an order. Regarding the substance of appellant’s claim, the Court observed how the Superior Court had already dealt with costs in an earlier order. The various reasons in the sequence of decisions identify opportunities for arbitral parties to either reserve or clarify the issue of costs incurred up to each phase of their dispute resolution.
Continue reading “Ontario – overlapping cost applications result in denial of most of costs claimed – #191”